Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 1/22/2023 was about taking a stand against antisemitism – what can employers do? Sadly, antisemitism is on the rise in the US. For a sobering statistic on just how much, see the post. Even celebrities have made antisemitic rants (you know who they are). A survey was done in November 2022 to assess the infiltration of antisemitism in the workplace. ResumeBuilder surveyed US hiring managers and recruiters about their feelings toward Jewish employees. The results showed that 26% are less likely to move forward with Jewish applicants, 23% want fewer Jewish employees in their industry, and more as listed in the post. But that’s not all. The survey also showed that stereotypes influence hiring decisions. For example, about 26% of those who responded said they relied on an applicant’s appearance to determine if s/he was Jewish and more than 32% said they determined “Jewishness” by the applicant’s last name. Yes, really. More stereotypes that came up in the survey results are also in the post (along with a link to the full survey results). We all (should) know that Title VII and state laws prohibit discrimination and harassment on the basis of religion (and ethnicity and race, among other protected characteristics), but the survey results show that there is still a long road to travel when it comes to awareness about antisemitism and how it impacts both Jewish employees and the workplace (ALL workplaces). So, what are some things employers can do? First, company leaders should speak out to condemn antisemitism and support Jewish employees. Ways to do this are in the post. The company should also understand the impact that time away from work to celebrate the Sabbath and other Jewish holidays has on Jewish employees – and figure out ways that they are not penalized for religious observances and more as noted in the post. There are many other things an employer can do that are listed in the post.
TAKEAWAY: Fighting antisemitism in the workplace – which benefits both Jewish employees and employers too – includes training supervisors, recruiters and HR personnel on how to recognize and address antisemitism in the workplace. Don’t just talk DEI, walk it.
The post on Monday 1/23/2023 told us that another federal decision confirms scrutiny of noncompete clauses is critical. Let’s start with a bit of back-ground. AmSpec is a NJ company that tests and inspects petroleum and petrochemicals. It sued 4 former employees and their new employer, Camin Cargo Control, for alleged violation of restrictive covenants when the employees left AmSpec to work for Camin, a direct competitor. Every employer’s nightmare, right? Each former employee had a non-compete agreement, the language of which is set forth verbatim in the post. It was the same for all of the employees. The issue was the meaning of the word “knowledge”. The former employees and Camin argued that the language ““prohibits them from working in any capacity for any entity engaged in the same or similar business as Plaintiff, even if the work is not competitive with Plaintiff’s business – including, for example, working as a secretary or janitor”. Not surprisingly, AmSpec disagreed; its argument is in the post. The court did not agree with AmSpec. In basing its analysis and holding on the four corners of the agreements, the Court said that AmSpec provided no support for its argument as to the meaning of the word. The Court then defined “knowledge” and found that the definition would indeed restrict the former employees from any work with a compe-titor (for the reasons set forth in the post). It did not hurt that AmSpec acknowledged in its complaint that its intent was to limit the former employees from working with competitors in any capacity and accepting employment with a competitor was itself a breach of the agreements. The Court then had to address whether it could blue-pencil (edit) the non-compete clause under applicable state law and other considerations (with its decision in the post).
TAKEAWAY: Employers must make sure that restrictive covenants are tightly drawn and legally valid – run them by your employment lawyer. Also, there are things other than restrictive covenants of which employers can take advantage to protect their business interests; see the post.
The post on Tuesday 1/24/2023 noted a condo association sues two homeowners for defamation. We asked it this is better than just letting the furor die down. This occurred in FL but could happen anywhere. The condo associ-ation here sued 2 owners because it says claims they made against the association and its leadership are untrue. Of course, to make its claim, the association had to repeat (in a public filing) the claims at issue, meaning it put out there the allegedly untrue things the owners had said. And what were those things? That the president and property manager conducted illegal activity by hiring the president’s brother for construction; that the property manager gets kickbacks from contractors, and more as noted in the post. The association filed two separate suits with what appears to be identical text. And because the complaints are public filings, you can read them both in their entirety by going to the post.
TAKEAWAY: Owners can sometimes be unhappy with what their condo or home-owners’ association is (not) doing, or how things are (not) being done, and they mouth off – but deciding whether or not legal action is warranted against the owners is another matter entirely and should be discussed in detail with a community associa-tion lawyer who is familiar with defamation law.
The post on Wednesday 1/25/2023 was about an FLSA work issue: the compensability (or not) of pre-shift COVID testing at the workplace. Some employers – especially those with obligations under OSHA – are still requiring COVID testing/ screening by employees prior to the start of a work shift. So the question that comes up is whether or not the time for that testing is compensable. If there are a lot of employees the answer one way can mean big dollars. The post gives some background on pre-shift preliminary things such as this and how and for what reasoning many courts have ruled. The post discusses a case from federal court in Michigan as an example. In that case the court did not award pay for pre-shift COVID screening. As part of its analysis, the court look at the defendant’s operations and the plaintiff employees’ duties to determine if the screening was integral to those duties. The post also looks at a federal case from California and talks a bit about the analysis there (with the decision coming out the same way in the end).
TAKEAWAY: Just as with many pre- (or even post-) shift tasks, whether COVID testing/screening is integral to the employee’s job is key. Make this decision with an employment lawyer.
In the post on Thursday 1/26/2023 we saw a new suit sounds warning: hairstyle bias can violate Title VII. The EEOC recently filed suit on behalf of a job applicant who allegedly was rejected because of his dreadlocks hairstyle. Matthew Barnett wears them for religious reasons, such that a denial of employment based on the dreadlocks is allegedly a violation of Title VII’s prohibition against religious discrimination.
Barnett applied for a job as an assistant manager at Home IGA, a grocery store. The EEOC alleges that management told Barnett that he would need to cut his dreadlocks if he wanted to work at the grocery. Barnett explained the dreadlocks are part of his religious beliefs and he would not cut them to work at the store.
The EEOC has detailed guidance addressing Title VII’s application to religious grooming and dress at work. Details on that, along with a link to the Guidance, are in the post. Employers must also remember that a religious belief can be sincerely held even if a particular religious practice related to it is new or is not observed all of the time. An example is given in the post.
Employers must also be warned that religious preferences of customers, co-workers, clients, or others do not trump the right of the employee (or applicant) to be free from religious discrimination. But there is a possible out (or defense) for employers in cases of requested religious accommodation: if providing the accommodation would result in an undue hardship on or to business operations. How that is defined and analyzed – which employers must know – is laid out in the post along with an example.
Finally, employers should remember that they cannot retaliate against applicants or employees who seek religious accommodation and have an obligation to protect employees from religious harassment by others (including those listed in the post).
As more and more states (and some localities) are enacting hairstyle anti-discrimina-tion laws – whether or not related to religion – employers must know what law applies to their workplace. Employers should also be aware that in many jurisdictions, discrimination based on hairstyle – without regard to religion – violates applicable law. A federal Crown Act measure even passed the US House in March 2022 but was blocked in the Senate in late December.
TAKEAWAY: Know the law – all of it – and meet your obligations as an employer under the law. Have an employment lawyer on speed dial to help get you through what can at times seem like a workplace minefield.
The post on Friday 1/27/2023 was about community association legislative trends & homeowner satisfaction: 2023 priorities. CAI, the Community Associations Institute, a federal organization aimed at making life better in community associations, tracks pending and hoped-for legislation related to those associations. Cai surveyed stakeholders to determine priorities for 2023. The results show that condo safety is a huge concern, including reserve studies and funding and more as noted in the post. Other priorities include what are called “community values”, which include solar panels, EV charging stations, landscaping and more, short- and long-term rentals and more as listed in the post. CAI’s foundation is also looking at community association issues of governance, management, and amenities, and also homeowner satisfaction. The survey hopes to better understand the MANY Americans (actual number in the post) living in MANY community associations (again, actual number is in the post) around the US. Some of the issues being tossed around there are noted in the post; there is also an interactive dashboard letting owners or other stakeholders compare various community association data by region, year and topic. Some good news from the survey: almost 87% of residents are on friendly terms with their governing boards (!) and more as in the post.
TAKEAWAY: Many of the same issues come up in multiple associations around the country; make sure your association handles them legally and reasonably by getting advice from a community association lawyer.
Finally, in the post yesterday 1/28/2023, we learned a company settled ADA suit over refusing remote work for employee at risk for COVID-19. ISS Facility Services settled a suit filed by the EEOC for $47,500 and other non-monetary relief. The subject employee worked at a manufacturing plant. In March 2020 (right at the start of the pandemic) she was diagnosed with hypertension and obstructive lung disease (how that affected her is in the post). From March – June 2020 employees worked a rotating schedule: one day in the plant and 4 days at home. At some point ISS required employees to return to the plant full-time. The subject employee asked to work from home 2 days per week and for frequent breaks when working on-site. Her documentation explained the basis for her request (and is described in the post). ISS denied her request (but allegedly it had granted requests from others in similar positions to work from home). She was fired a few weeks later. Then the EEOC sued (on the bases elaborated on in the post but which should be obvious to you). And now ISS has settled that suit.
TAKEAWAY: Let’s say it again: remote work is here to stay and employers must know their accommodation obligations under the ADA (which does not mean automatically granting remote work – see the post for more on this and consult an employment lawyer).
York, Pennsylvania 17403